217 N.W. 488 | Minn. | 1928
Ever since the entry of the judgment controversies have arisen on account of default in the payment of the alimony awarded. Plaintiff procured an order to show cause why defendant should not be punished for contempt for his default; and defendant an order to show cause why the amounts of alimony and support for the child should not be reduced. A hearing was had on both orders September 13, 1927. Plaintiff's application to have defendant punished as for contempt was on his motion dismissed, but by consent of the parties the court heard and considered whether defendant's income was sufficient to enable him to pay the alimony and allowance theretofore ordered. The court by an order found there was then a default in the payment thereof to the extent of $350, and that defendant's income had been sufficient to enable him to pay it, and ordered him to pay the same within ten days from the date of the service of the order. Defendant's order to show cause why there should not be a reduction in the alimony and allowance was by a separate order discharged. Defendant appeals from each order. *466
The order finding defendant's income sufficient to enable him to pay the $350 alimony found to be in arrears and ordering defendant to pay the same within ten days is not a final order and the appeal therefrom is dismissed. Semrow v. Semrow,
The order refusing to reduce the alimony is appealable. Haskell v. Haskell,
Defendant made an application for a modification in both respects in June, 1927. A hearing was had and an order made July 2, 1927, whereby, by consent of both parties, the custody of the child was awarded a third party. The motion, in so far as it asked that all alimony to plaintiff cease, was denied; the court however granting this modification, that $100 be paid to plaintiff each month as alimony and that $100 be paid by defendant to the one having the custody of the child for its support and education. There was no appeal from that order, and it was appealable. Instead, within two months defendant again moved for relief from all alimony or its reduction, resulting in this order now under review. It is no more proper upon this last hearing to consider the facts involved or which could have been presented on the hearing resulting in the order of July 2 than those before the court or obtainable at the trial which culminated in the judgment of November 29, 1926. Hence *467 the inquiry to which the court below was limited was whether or not there had been such a change in the situation of the parties since July 2, 1927, as to warrant any relief from the alimony of $100 then awarded. The implication from the record is that the custody of the child and the amount and payments for her support and education were according to defendant's own wishes. At any rate he is under obligation to support the child; and while it is proper to take the amount so needed into account in fixing the alimony to the wife and ascertaining the ability of the husband to pay it, still it is not thought that the one-third of the husband's income, to which the award of alimony may extend by G.S. 1923, § 8602, must necessarily be reduced because of the outlay for the support of the children although such expenses may well be considered by the court. The wife in every divorce action is not entitled as a matter of right to alimony to the full extent of one-third of the husband's net income. Her age, health, and earning capacity are to be considered as well as that of the husband.
There can be no doubt that where the wife upon a divorce is granted alimony, and such alimony is to be derived solely from the earnings of the husband, it means the net earnings; so that under the section cited the amount cannot exceed one-third of the income after deducting the necessary expenses, which for a practicing physician includes office equipment and help, rent, telephone, drugs, medicines, etc. And it may also be said that now an automobile and its upkeep is a necessity for a doctor. But even tested by that rule we cannot say that upon this record there was an abuse of judicial discretion in refusing to reduce or revoke the alimony fixed by the order of July 2, 1927. The rule governing the trial court in orders of the sort now under review is well stated and restated in Haskell v. Haskell,
The order is affirmed.